People v. Wishard

Opinion

Filed 12/15/09 NO. 4-08-0712

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County DWIGHT C. WISHARD, ) No. 08CF359 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. _________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

Defendant, Dwight C. Wishard, pleaded guilty to attempt

(residential burglary) (720 ILCS 5/8-4(a), 19-3(a) (West 2006)),

aggravated battery (720 ILCS 5/12-4(b)(18) (West 2006)), and

disarming a peace officer (720 ILCS 5/31-1a (West 2006)) and the

trial court sentenced him to a total of 14 years in prison. He

appeals, arguing section 31-1a of the Criminal Code of 1961

(Code) (720 ILCS 5/31-1a (West 2006)) impermissibly includes

conduct that constitutes both the inchoate and completed offense

of disarming a peace officer. He also contends his trial counsel

provided ineffective assistance for failing to raise that issue

with the trial court. We affirm.

On March 6, 2008, a grand jury indicted defendant for

the offenses of attempt (residential burglary) (720 ILCS 5/8-

4(a), 19-3(a) (West 2006)), aggravated battery (720 ILCS 5/12-

4(b)(18) (West 2006)), disarming a peace officer (720 ILCS 5/31-

1a (West 2006)), and obstructing justice (720 ILCS 5/31-4(a)

(West 2006)). Count IV, obstructing justice, was dismissed by the State. On June 16, 2008, defendant made an open plea of

guilty to all but the obstructing-justice offense. According to

the State's factual basis, Virginia Dewar called police to her

residence in response to defendant repeatedly ringing her door-

bell and pounding on her door. Officers arrived on the scene and

discovered defendant crouched near a broken basement window at

the back of the residence. Defendant fled but was soon caught

and found with a crowbar in his possession.

While being taken into custody, defendant sustained

injuries that required medical treatment and was taken to a

hospital. At the hospital, he jumped off an examining table and

attacked Sergeant Robert Fitzgerald. Defendant also tried to

take Fitzgerald's handgun but Fitzgerald was able to push defen-

dant away. Defendant fled through the hospital's emergency room

but was tackled by a doctor. The trial court accepted defen-

dant's guilty pleas and set the matter for sentencing.

On August 1, 2008, the trial court sentenced defendant

to seven years' imprisonment for each offense. It ordered his

sentences for aggravated battery and disarming a peace officer to

run concurrently with each other but consecutively to his sen-

tence for attempt (residential burglary), for a total of 14 years

in prison. On August 18, 2008, defendant filed a motion to

reconsider his sentence, arguing only that his sentence was

excessive. On September 10, 2008, the court denied his motion.

This appeal followed.

On appeal, defendant argues section 31-1a of the Code

- 2 - impermissibly includes conduct that constitutes both the inchoate

and completed offense of disarming a peace officer. He contends

section 31-1a (1) abrogates the rule that no person shall be

convicted of both the inchoate and principal offense as set forth

in section 8-5 of the Code (720 ILCS 5/8-5 (West 2006)), (2)

raises unconstitutional disproportionate-penalty problems because

the same misconduct is classified as both a Class 2 and 3 felony,

and (3) violates the rule that penal statutes must be strictly

construed in the accused's favor. Defendant acknowledges he

failed to raise this issue with the trial court but contends it

may, nevertheless, be considered on appeal pursuant to the plain-

error doctrine.

"Under [Supreme Court] Rule 604(d) [(210 Ill. 2d R.

604(d))], any issue not raised in a motion to withdraw a guilty

plea or to reconsider a sentence after a guilty plea is for-

feited." People v. Thompson, 375 Ill. App. 3d 488, 492, 874

N.E.2d 572, 575-76 (2007). However, in some circumstances, the

plain-error doctrine may be applied as an exception to the

forfeiture rule. Thompson, 375 Ill. App. 3d at 492, 874 N.E.2d

at 576. Pursuant to the plain-error doctrine, a reviewing court

may consider unpreserved error where:

"'(1) a clear and obvious error occurred and

the evidence is so closely balanced that the

error alone threatened to tip the scales of

justice against the defendant, regardless of

the seriousness of the error, or (2) a clear

- 3 - or obvious error occurred and that error is

so serious that it affected the fairness of

the defendant's trial and challenged the

integrity of the judicial process, regardless

of the closeness of the evidence.'" People

v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d

691, 697 (2009), quoting People v.

Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d

403, 410-11 (2007).

"Under both prongs of the plain-error doctrine, the

burden of persuasion remains with defendant." Walker, 232 Ill.

2d at 124, 902 N.E.2d at 697. "The initial step in conducting

plain-error analysis is to determine whether error occurred at

all." Walker, 232 Ill. 2d at 124, 902 N.E.2d at 697. "This

requires *** a substantive review of the issue." Walker, 232

Ill. 2d at 125, 902 N.E.2d at 697.

"The fundamental rule of statutory construction is to

ascertain and give effect to the intent of the legislature."

People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 193, 909

N.E.2d 783, 791 (2009). "The best evidence of legislative intent

is the statutory language, given its plain and ordinary meaning."

Birkett, 233 Ill. 2d at 193, 909 N.E.2d at 791. Questions of

statutory construction are subject to de novo review. Birkett,

233 Ill. 2d at 193, 909 N.E.2d at 791.

"It is generally held that subsequent laws on the same

subject are regarded as supplementary or complimentary to the

- 4 - earlier enactments." Zears v. Davison, 154 Ill. App. 3d 408,

411, 506 N.E.2d 1041, 1043 (1987). Further, "'[i]t is a funda-

mental rule of statutory construction that where there exists a

general statutory provision and a specific statutory provision,

either in the same or another act, which both relate to the same

subject, the specific provision controls and should be applied."

People v. Villarreal, 152 Ill. 2d 368, 379, 604 N.E.2d 923, 928

(1992).

The Code contains a general attempt statute that

provides as follows: "[a] person commits an attempt when, with

intent to commit a specific offense, he does any act which

constitutes a substantial step toward the commission of that

offense." 720 ILCS 5/8-4(a) (West 2006). "The general attempt

statute applies to all offenses, unless there is manifest a

legislative intent to exclude it from the statute." People v.

Patten, 230 Ill. App. 3d 922, 930, 595 N.E.2d 1141, 1147 (1992),

citing People v. Wallace, 57 Ill. 2d 285, 291-92, 312 N.E.2d 263,

266-67 (1974).

Section 31.1a of the Code (720 ILCS 5/31-1a (West

2006)) details the elements of the offense of disarming a peace

officer. That section provides as follows:

"A person who, without the consent of a

peace officer ***, takes or attempts to take

a weapon from a person known to him or her to

be a peace officer ***, while the peace offi-

cer *** is engaged in the performance of his

- 5 - or her official duties or from an area within

the peace officer's *** immediate presence is

guilty of a Class 2 felony." (Emphasis

added.) 720 ILCS 5/31-1a (West 2006).

In Patten, 230 Ill. App. 3d at 930-31, 595 N.E.2d at

1147, the First District found evidence of a manifest legislative

intent in the child-abduction statute before it to exclude

application of the general attempt statute. The relevant child-

abduction statute provided "that a person commits child abduction

when he or she '[i]ntentionally lures or attempts to lure a child

under the age of 16 into a motor vehicle *** without the consent

of the parent or lawful custodian of the child for other than a

lawful purpose.' [Citation]." Patten, 230 Ill. App. 3d at

926-27, 595 N.E.2d at 1144. The court found "[t]he intent of the

legislature to increase punishment in specific child[-]abduction

cases was within its prerogative, and its decision to exclude the

general attempt statute in such cases eliminated any proportion

problem." Patten, 230 Ill. App. 3d at 931, 595 N.E.2d at 1147.

Here, section 31-1a contains a manifest legislative

intent to exclude application of the general attempt statute.

The plain language of section 31-1a includes both attempts to

disarm a peace officer as well as the completed act of disarming

a peace officer. As the more specific statute, section 31-1a

controls over the general attempt statute. As the First District

found in Patten, it was within the legislature's prerogative to

increase the punishment for this specific offense.

- 6 - Also, contrary to defendant's contention, no

disproportionate-penalties problem exists. The legislature,

through its inclusion of the attempts-to-take language in section

31-1a, excluded application of the general attempt statute to

situations involving attempts to disarm a peace officer.

To support his position, defendant cites Wallace, 57

Ill. 2d at 287, 312 N.E.2d at 264, wherein the defendants prof-

fered money to two police officers in return for their release

but the officers rejected the offer. The defendants were con-

victed of attempted bribery. Wallace, 57 Ill. 2d at 287, 312

N.E.2d at 264. They appealed, arguing the offense of attempted

bribery did not exist and facts showing the refusal of an offer

of money constituted the completed act of bribery. Wallace, 57

Ill. 2d at 287, 312 N.E.2d at 264. The supreme court concluded

the general attempt provision of the Code could be applied to

cases involving a consummated offense. Wallace, 57 Ill. 2d at

289, 312 N.E.2d at 266. Further, it stated "[i]n the absence of

manifest legislative intent to exclude bribery from the purview

of the general attempt provision of the *** Code, *** the indict-

ment [in the case before it] was valid." Wallace, 57 Ill. 2d at

292, 312 N.E.2d at 267.

In his brief, defendant argues as follows:

"The lesson to take from Wallace is that

even if a statute merges both the inchoate

and the completed offense into a single sub-

stantive offense, *** this does not negate

- 7 - application of the general attempt statute to

those facts, as there was nothing in that

merger to evince a clear legislative intent

to prevent application of the general attempt

statute."

Wallace, however, is factually distinguishable from the case at

bar. Section 31-1a clearly applies when someone takes or

attempts to take a weapon. As stated, this language is suffi-

cient to show a manifest legislative intent to exclude applica-

tion of the general attempt provision of the Code. The statute

in Wallace did not contain similar language regarding attempts at

bribery.

A substantive review of the issue presented reveals no

error occurred. The plain-error doctrine is not applicable nor

is a reversal of defendant's conviction warranted. Additionally,

we note, because defendant's claim that section 31-1a

impermissibly included conduct constituting both the inchoate and

completed offense of disarming a peace officer is without merit,

his claim that his attorney provided ineffective assistance for

failing to raise the issue with the trial court is also without

merit.

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we grant the State its

statutory assessment of $50 against defendant as costs of this

appeal.

Affirmed.

KNECHT and POPE, JJ., concur.

- 8 -